R v Nesci - [2014] VSC 67

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0194

THE QUEEN
v
SAMMY NESCI	Accused

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JUDGE:	CROUCHER J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2014
DATE OF SENTENCE:	6 March 2014
CASE MAY BE CITED AS:	R v Nesci
MEDIUM NEUTRAL CITATION:	[2014] VSC 67

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CRIMINAL LAW – Sentence – Possession of unregistered firearm – Brief period of possession in unusual circumstances – Early plea of guilty – Remorse – No prior convictions at age 44 – Excellent prospects of rehabilitation – Release on undertaking to be of good behaviour for 18 months, without conviction.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P D’Arcy	Office of Public Prosecutions
For the Accused	Mr J Willis	Davis Zucco Lawyers

HIS HONOUR:

Introduction

Sammy Nesci is charged with possessing an unregistered category A or B longarm firearm on 17 April 2013, contrary to s 6A(1) of the Firearms Act 1996 (Vic).

The Director of Public Prosecutions originally filed an indictment in this Court charging not only the possession offence but also an offence of attempting to pervert the course of justice arising out of that possession. On 7 February 2014, however, the Director withdrew the charge of attempting to pervert the course of justice by filing over a new indictment charging only the possession offence. Mr Nesci pleaded guilty and the matter was adjourned until 25 February 2014 for a plea in mitigation.

Facts giving rise to the offence

Mr D’Arcy, who appeared on behalf of the Director, tendered a written summary of the facts (Exhibit 2). In the course of opening the matter, he indicated an amendment to that summary. As amended, the summary is as follows:

Mr Nesci was born on 17 November 1969. At the time of the offence, he was 43 years of age.

On 17 April 2013, Kara Doyle was seated on a couch at her home in Military Road, Avondale Heights, when she was shot by Mehmet Torun. She was shot at a distance of less than a metre with a sawn-off 12-gauge shot-gun. Ms Doyle was placed in a car and driven to a Caltex service station in Avondale Heights where assistance was sought.

At that time, Mr Nesci happened to be at the same service station. He worked at a nearby bakery, which was the family business. He had not been involved at all in the earlier shooting and did not know any of the people present at the house where the shooting occurred. However, whilst at the service station, Mr Nesci spoke to Kirsten Smith, who had been at the house at the time of the shooting. Later, when back at the bakery, he offered to take possession of the sawn-off shot-gun. He retrieved the gun from a car, handled it with a plastic bag (to avoid leaving fingerprints) and hid it in a concealed compartment in his house above the bakery. The gun was retrieved later that day by Baki Unlu,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Nesci

Details

AGLC: R v Nesci [2014] VSC 67
Case: [2014] VSC 67
Decision Date: 6 March 2014

CaseChat Overview and Summary

The matter before the court involved a criminal charge against the defendant, Nesci, for possession of an unregistered firearm. Nesci's brief period of possession occurred under unusual circumstances, and he pleaded guilty early in the proceedings. Nesci, at 44 years of age, had no prior convictions. The court was required to consider the mitigating factors of Nesci's remorse, his age, lack of prior convictions, and his excellent prospects for rehabilitation. The court was tasked with determining an appropriate sentence that would reflect these factors, while also addressing the seriousness of the offence.

The central legal issue was the appropriate sentence for Nesci, considering the mitigating factors of his remorse, age, and prospects of rehabilitation, against the gravity of the offence of possessing an unregistered firearm. The court needed to balance these considerations to arrive at a sentence that was both punitive and rehabilitative.

The court acknowledged the mitigating factors presented by Nesci's early guilty plea, his remorse, and his prospects of rehabilitation. It noted that the possession of the firearm, although serious, was for a brief period and in unusual circumstances. The court recognised that Nesci, at 44 and without prior convictions, presented a low risk of reoffending. In light of these factors, the court decided that a sentence that avoided a criminal record would be appropriate, thereby providing Nesci with an opportunity to rehabilitate without the stigma of a conviction. Consequently, the court sentenced Nesci to be of good behaviour for 18 months, without a conviction being recorded.

Orders